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Perjury by Omission PERJURY BY OMISSION IRA P. ROBBINS* ABSTRACT “Do you swear to tell the truth, the whole truth, and nothing but the truth?” There are few legal phrases that the layperson can repeat verbatim; this is one of them. But how many people truly understand the nuances and ramifications of testifying under oath? Many assume that if they do not provide the “whole truth” under oath, they will face a perjury charge. However, perjury is a charge often threatened but rarely used. The offense requires that the defendant willfully and knowingly make a false statement, under oath, regarding a material fact. The federal perjury statute does not contemplate a scenario in which a defendant (or declarant, deponent, witness, or interviewee) withholds truthful information in an attempt to mislead the questioner and alter the outcome of a judicial proceeding—in sum, not telling the “whole truth.” But, in Bronston v. United States, the Supreme Court considered just this situation, holding that the language of the federal perjury statute does not contemplate a defendant who intentionally omits material information. Instead, the Court broadly ruled that “literally truthful” answers are categorically forbidden from being the basis of perjury. The Court placed the burden on the questioner to elicit the desired answer from a witness when confronted with a literally truthful, yet unresponsive and misleading answer. Such an onus suggests that all questioners possess the abilities of a mind reader. This Article demonstrates that the Bronston Court created unforeseen consequences. Currently, a sophisticated defendant can dodge a perjury charge by providing a literally true answer while omitting pertinent information. Sometimes, these answers communicate a lie, but as long as they are literally truthful under the Bronston Court’s broad interpretation, a defendant could never face a perjury charge. Congress can fill the holes of this decision by amending the federal perjury statutes to criminalize those who intentionally give incomplete or misleading responses regarding material information under oath. * Barnard T. Welsh Scholar and Professor of Law and Justice, American University, Washington College of Law. A.B. University of Pennsylvania; J.D. Harvard University. I am more than ordinarily grateful to my superb and indispensable research assistants—Tara Carrier, Isilda Gjata, Nicholas Hillman, Regina Loureiro, Molly Prindle, Mary Frances Richardson, and Sara Toscano— whom I consider to be my colleagues and my friends, and to Dean Camille Nelson, for providing summer financial support. Copyright © 2019 by Ira P. Robbins. All rights reserved. 265 266 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 97:265 TABLE OF CONTENTS INTRODUCTION ........................................................................................ 266 I. BACKGROUND ...................................................................................... 269 A. Perjury ............................................................................................ 269 1. The Early History of Perjury ...................................................... 269 2. The Modern Federal Perjury Statutes ........................................ 270 B. Bronston and the Literal Truth Defense ......................................... 272 1. The Literal Truth Defense and Questioner’s Acuity ................... 274 2. Lower Courts Moving Forward—What Juries Can Infer .......... 277 3. Unresponsive vs. Responsive Answers ....................................... 277 4. An Attorney’s Ethical Obligation ............................................... 279 C. Silence, Omissions, and the Law .................................................... 280 1. When Silence Has Legal Meaning .............................................. 280 2. Statutes in Which Silence and/or Omissions Can Lead to Conviction ...................................................................................... 282 II. THE NEED TO EXPAND FEDERAL PERJURY LAW TO COUNTER WILY WITNESSES .............................................................................................. 284 A. The Literal Truth Loophole ............................................................ 284 B. Perjury by Omission ....................................................................... 286 1. What Juries Would Be Able to Infer ........................................... 287 2. Omissions in Other Contexts as Support .................................... 288 3. Ethical Obligations ..................................................................... 290 C. Revising the Federal Perjury Statutes ............................................ 291 1. State Statutes and Perjury by Omission ..................................... 291 2. Model Statute and Jury Instructions ........................................... 292 CONCLUSION ........................................................................................... 293 INTRODUCTION In September 2018, Americans gathered around their televisions or computer monitors to watch members of the Senate Judiciary Committee question then-Judge Brett Kavanaugh and Dr. Christine Blasey Ford. Judge Kavanaugh had recently been nominated to the Supreme Court, motivating Dr. Ford to publicly accuse him of physically and sexually assaulting her in the 1980s.1 For the Committee to gather potentially useful information in 1. See Eli Watkins, Timeline: How the Kavanaugh Accusations Have Unfolded, CNN (Sept. 17, 2018, 4:46 PM), https://www.cnn.com/2018/09/17/politics/kavanaugh-ford-timeline/index.html [https://perma.cc/6ZR4-Zj9Y] (describing how Judge Kavanaugh agreed to answer senators’ questions in order to refute allegations of physical and sexual abuse against him). 2019] PERJURY BY OMISSION 267 Judge Kavanaugh’s confirmation process, both Dr. Ford and Judge Kavanaugh willingly participated in a hearing.2 At this hearing, each senator had five minutes to question Dr. Ford and Judge Kavanaugh, who were both under oath, in order to elicit information regarding the allegations.3 Due to this time restraint, it was important that both witnesses answer each question as directly and truthfully as possible. When it was Judge Kavanaugh’s turn, however, he often used evasive, unresponsive answers, which derailed the senators’ lines of questioning and frustrated their ability to get the answers they desired.4 By providing irrelevant answers,5 and sometimes even asking the senators questions instead of answering theirs,6 Judge Kavanaugh managed to avoid revealing certain information. His testimony is an example of an educated person who has seemingly exploited the broad confines of perjury by providing useless answers under oath. This is not the first time a public official has used slight ambiguity7 to avoid admitting unfavorable information about himself. During a deposition regarding the Paula Jones lawsuit, President Bill Clinton was asked about his now-infamous relationship with Monica Lewinsky.8 President Clinton was able to infuse ambiguity into the provided definition of “sexual relations” in order to avoid divulging information regarding his physical 2. Id. 3. See Phil Mattingly & Kate Sullivan, What Thursday’s Hearing with Kavanaugh and Ford Will Look Like, CNN (Sept. 25, 2018, 10:49 PM), https://www.cnn.com/2018/09/25/politics/thursday- hearing-format-kavanaugh-ford/index.html [https://perma.cc/HK3H-DYH2] (explaining that, at the testimony, “[t]here will be one round of questions in which each senator will have five minutes each to ask Ford questions”). 4. See Kate Sullivan, Kavanaugh’s Yale Classmate: ‘There Were Omissions’ in Testimony About His College Drinking, CNN (Oct. 1, 2018, 7:27 PM), https://www.cnn.com/2018/10/01/politics/ yale-kavanaugh-drinking-ludington/index.html [https://perma.cc/BXU2-N2RY] (reporting that “Chad Ludington, who went to Yale with Supreme Court nominee Brett Kavanaugh, said ‘there were omissions’ in the nominee's testimony to the Senate Judiciary Committee on Thursday about his drinking in college”). 5. In response to the following question by Senator Leahy: “So you don’t know—you don’t know whether that’s you [in Mark Judge’s book] or not?,” then-Judge Kavanaugh responded, “we can sit here and you (ph) like (ph), make—make fun of some guy who has an addiction.” Bloomberg Gov’t, Kavanaugh Hearing: Transcript, WASH. POST (Sept. 27, 2018), https://www.washingtonpost.co m/news/national/wp/2018/09/27/kavanaugh-hearing-transcript/?utm_term=.72d4ba2bc183 [https://per ma.cc/LGS8-WCD7]. 6. Senator Klobuchar asked the following: “So you’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before, or part of what happened,” to which Judge Kavanaugh responded: “It’s—you’re asking about, you know, blackout. I don’t know. Have you?” Id. 7. Career prosecutor Rachel Mitchell asked: “OK. Have you ever passed out from drinking?” Kavanaugh responded: “I—passed out would be—no, but I’ve gone to sleep, but—but I’ve never blacked out.” Id. 8. President Clinton’s Deposition, WASH. POST (Mar. 13, 1998), https://www.washingtonpost .com/wp-srv/politics/special/clinton/stories/clintondep031398.htm [https://perma.cc/LP9G-QY53]. 268 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 97:265 relationship with her.9 In doing so, he avoided a perjury charge because, based on his own definition of “sexual relations,” he was telling the truth.10 This Article is not accusing now-Justice Kavanaugh or President Clinton of perjury. Instead, it is suggesting that their testimonies are examples of holes in
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